Jeff Sessions' Attack on the Media Is Worse Than You Think

Attorney General Jeff Sessions held a news conference Friday to announce how avidly the Department of Justice was going to investigate and prosecute leakers of classified national security information. From now on, he said, “the Department of Justice is open for business.” (An odd statement, to be sure, suggesting that it was previously closed.) Much of what he said was nothing new—really, administrations have been going after leakers for decades—but the way he said it was clever, and not for the reasons one might think.

It is important to remember that this speech is supposed to be about leaks to the media. The title of the official transcript of his remarks is “Attorney General Jeff Sessions Delivers Remarks at Briefing on Leaks of Classified Materials Threatening National Security.” He starts out his remarks by condemning “the staggering number of leaks undermining the ability of our government to protect this country,” and explains that “no one is entitled to fight their battles in the media by revealing sensitive government information.” So, he’s obviously talking about leaks to the media, right? That’s what the briefing’s about: fighting leaks to the media. We’re all on the same page.

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Except it’s not about leaks to the media. In almost all of the rest of his remarks, Sessions talks about “unauthorized disclosures of classified national security information” in general and mentions offhand that this term “includes leaks to both the media and in some cases even unauthorized disclosures to our foreign adversaries.” But he never mentions the media again until the very end, and the middle is spent talking about criminal referrals involving unauthorized disclosures, featuring the remarkable statement, “And we have already charged four people with unlawfully disclosing classified material or with concealing contacts with foreign intelligence officers.” And it is that single sentence that makes Sessions’ push against leaks new, and very insidious.

So, who were those four people who have been already charged? Mike Sacks, national correspondent for E.W. Scripps, took a stab at guessing the four, and then reported that the Justice Department confirmed that he was half right. The four already charged are Reality Winner, Kevin Mallory, Candace Claiborne and Harold Martin. We all know about Reality Winner—who was arrested for allegedly leaking classified information to The Intercept—but who are these other three? Well, Mallory is charged with giving classified information to China, Claiborne is charged with not reporting her contacts with Chinese agents she considered “spies,” and Martin methodically took home classified information over a 20-year career at the National Security Agency. So only one out of four of the people has any connection to the media. The other three are a definite spy, a maybe spy and a hoarder whose house poses a national security nightmare if anyone ever visits him. All three of these people would instantly be identified as “criminals who would illegally use their access to our most sensitive information to endanger our national security” who should be investigated and prosecuted.

Here’s the problem. By saying, “I’m here to talk about leaks to the media,” then talking about all sorts of other unlawful activities tied to classified information, Sessions has adroitly preyed on a logical fallacy we’ll call “false implication,” which is based on humans’ basic tendency to want to see patterns even where none exist. That is what happens when someone says two sentences that are both factually accurate, but have no relationship, yet are intended to imply a relationship. Imagine if a politician said, “Drugs are a huge problem in our country. More than 100,000 people died in our state last year alone.” You would not be faulted if you assumed that those 100,000 people died drug-related deaths, but that’s not what he said. It is quite possible that he preyed on this tendency and merely recounted the number of people who died, period. He has not lied, but he created a false implication. If the false implication is defamatory, he can even be sued for it; the law calls it “libel by omission.” So in this case, Sessions said he was talking about leakers to the media, then he talked about all the investigations into unlawful disclosures the department is conducting, then he mentioned four indictments for unlawful disclosures or retention, of which only one is a leaker. The implication he was going for is clear: All of these problems are the same.

Which brings us to the second part of the problem. Thinking that two dissimilar things are the same is called “false equivalence,” and it is, generally speaking, a bad thing. In this case, it is a very bad thing, because of the two sides he is seeking to equalize in the public’s mind. Because these fallacies operate on a subconscious level, the attorney general’s goal is to have people think “spy” when they hear “leaker,” but there is actually more to it than that. In order to think “spy” when you hear “leaker,” you have to also think “adversary” when you hear “media.” And once you have solidly established a cognitive link that “leaker equals spy” and “media equals adversary,” you are not very likely to want to curb leak investigations and prosecutions, because who is against prosecuting spies who give classified information to our adversaries?

Admittedly, this is a vast oversimplification of a very subtle and insidious process, but it is a process well-known to students of psychological operations and propaganda. The best way to combat such things is to shine the light on them for what they are. Magicians know that people stop falling for an illusion once the trick is explained, and that is no different. So we should take care to recognize this trick and fight against it.

Don’t get me wrong; leaking classified information to the media is illegal, and it can result in harm to our national security. But recognizing that fact is a far cry from saying that leaking to a reporter is anything close to selling secrets to China: The two deserve to be treated differently. While it is true that the courts might decide to draw a line in the sand if the DOJ moves too far in this direction, they also might not, and even the courts’ hands are tied if new laws go into effect. Sessions is playing a long game here, and this is just him setting the public opinion foundation before he starts asking for more authorities to combat leaks. When he starts asking for those authorities, we the public need to be able to voice an informed opinion as to whether the threat of leakers is as great as he says it is, without confusing leakers with spies.

Kel McClanahan is executive director of National Security Counselors, a Maryland-based public interest law firm that specializes in national security law and information and privacy law, and through which he often represents intelligence community employees and contractors. He is also adjunct professor at the American University Washington College of Law, where he teaches national security law and practice.